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Judgments of Supreme Court of India and High Courts

Rahul Thakur vs State Of Himachal Pradesh on 3 January, 2020

1

IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA

Cr. MMO No. 784 of 2019

.

Date of Decision: January 3, 2020

Rahul Thakur …Petitioner.

Versus

State of Himachal Pradesh
another ..Respondents.

Coram:
The Hon’ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1 Yes

For the Petitioner: Mr. Vishwa Bhushan, Advocate.

For the Respondents: Mr.S.C. Sharma, Additional Advocate
General, with M/s Kamal Kant, Kuldeep
Chand Thakur Ms.Seema Sharma,

Deputy Advocate Generals, for
respondent No.1-State.
Mr. Ashok Kumar, Advocate, for

respondent No.2.

Vivek Singh Thakur, J. (oral)

This petition has been preferred under Section 482

of the Code of Criminal Procedure (hereinafter referred to as

‘SectionCr.PC’), by petitioner Rahul Thakur for quashing FIR No. 46 of

2019 dated 02.11.2019, registered in Women Police Station,

Mandi, District Mandi, H.P., under Section 376 of the Indian Penal

Code (hereinafter referred to as ‘SectionIPC’ in short) and the

consequent criminal proceedings arising thereto.

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Whether reporters of the local papers may be allowed to see the judgment?

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2. Petitioner Rahul Thakur and respondent No.2 Prem

Lata are present in person in the Court today, who have been

identified by their respective learned counsel. Their statements,

.

on oath, have also been recorded separately today in the Court.

3. In her statement complainant-respondent No.2 Prem

Lata has stated that her first meeting with petitioner was at Bus-

Stand Mandi and at that time, she was pursuing her Graduation

Course from Government College, Mandi and petitioner was

serving as a Probationary Officer in Gramin Bank. She has further

stated that after having friendship, they had developed intimacy

and decided to marry each other and they had also taken their

parents in confidence to materialize their proposal and for

assurance of the marriage, they had also developed physical

relations, however, thereafter, petitioner had shown his

reluctance to marry her, which caused mistrust about relations

and lead to lodging of FIR against the petitioner. She has further

stated that later on her family as well as family of petitioner had

clarified that fluctuation in behaviour of petitioner was temporary

and in fact he was in the process of taking decision to solemnize

marriage and was thinking about future thereafter and that after

lodging of FIR, petitioner was arrested and was released on bail

on 03.12.2019 and despite lodging of FIR against petitioner by

her, he not only agreed to marry with her but with the consent of

parents, they have solemnized marriage on 13.12.2019 in Tarna

Mata Temple, Mandi and thereafter, marriage has also been

registered at Sl. No.32 in Marriage Register maintained by Gram

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Panchayat Rakhoh. She has further stated that her name has

also been entered in the Family Register of the said Panchayat as

a wife of petitioner and since then, she is residing alongwith

.

petitioner in the house of her in-laws and they are living happy

married life and because of subsequent conduct of the petitioner,

she had developed full faith that he will maintain her properly

and will not, in any manner, cause harm to her and her interests

and believing him she does not want to continue criminal

proceeding against him as it would be actually harming her and

her interest and also their family life. She has further stated that

she has deposed in this Court, out of her free will, consent and

without any external pressure, coercion or threat of any kind.

4. In his statement, petitioner Rahul Thakur has stated

that he has heard the statement made by complainant-

respondent No.2 Prem Lata and has endorsed the same to be

true and correct and had that he married her with his free will,

consent and without any pressure, threat or coercion and in fact,

he had never intended not to marry her, but there was some

fluctuation in his thoughts, which were shared with her and such

communication had caused mistrust in their relations leading to

lodging of FIR. He has further stated that he has realized his

mistake and has taken steps to rectify the mistake and has also

undertaken to keep his wife-respondent No.2 Prem Lata happy

and to maintain her properly in all respects. He has further

stated that he has deposed in this Court, out of his free will,

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consent and without any external pressure, coercion or threat of

any kind.

5. Considering peculiar facts and circumstances of

.

present case, petition has been opposed on behalf of respondent

No. 1-State on the ground that it is not maintainable as in

investigation a case under Section 376 IPC is made out and on

the basis of challan presented in Court trial is pending

consideration of Court. It is also contended on behalf of

respondent/State that petitioner is not entitled to invoke inherent

jurisdiction of this Court to exercise its power, keeping in view

the nature of crime, for quashing of FIR with respect to an

offence heinous in nature and not compoundable under Section

320 Cr.P.C.

6. It is a case of peculiar nature where

complainant/respondent No.2 and accused/petitioner are now

residing under one and same roof as husband and wife. In fact it

appears from their statements, recorded on oath, that petitioner

without taking final decision, had developed intimacy with

respondent No.2 with intention to marry her, which had led to

physical relations with each other, however, thereafter, there

was fluctuation in mind of petitioner which was communicated by

him to respondent No.2 whereupon, and rightly so, respondent

No.2 had gathered impression that petitioner was not inclined to

marry her and had developed physical relations with her in

deceitful manner and had cheated her and, consequently, it had

resulted into registration of FIR against petitioner. However,

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thereafter, on removal of misunderstanding, they have

solemnized marriage on 13.12.2019 in Tarna Mata Temple,

Mandi, H.P., in accordance with Hindu rites and rituals and now

.

respondent No.2 is residing with in-laws along with her

husband/petitioner and has prayed for quashing of FIR and

criminal proceedings pending against her husband for

betterment of her life as well as welfare of her husband and in-

laws.

7. Three Judges Bench of the Apex Court in Gian Singh

Vs. State of Punjab and Ors. reported in (2012) 10 SCC 303 ,

explaining that High Court has inherent power under Section 482

of the Code of Criminal Procedure with no statutory limitation

including Section 320 Cr.PC, has held that these powers are to

be exercised to secure the ends of justice or to prevent abuse of

process of any Court and these powers can be exercised to

quash criminal proceedings or complaint or FIR in appropriate

cases where offender and victim have settled their dispute and

for that purpose no definite category of offence can be

prescribed. However, it is also observed that Courts must have

due regard to nature and gravity of the crime and criminal

proceedings in heinous and serious offences or offence like

murder, rape and dacoity etc. should not be quashed despite

victim or victim family have settled the dispute with offender.

Jurisdiction vested in High Court under Section 482 Cr.PC is held

to be exercisable for quashing criminal proceedings in cases

having overwhelming and predominatingly civil flavour

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particularly offences arising from commercial, financial,

mercantile, civil partnership, or such like transactions, or even

offences arising out of matrimony relating to dowry etc., family

.

disputes or other such disputes where wrong is basically private

or personal nature where parties mutually resolve their dispute

amicably. It was also held that no category or cases for this

purpose could be prescribed and each case has to be dealt with

on its own merit but it is also clarified that this power does not

extend to crimes against society.

8. Ther Apex Court in Parbatbhai Aahir alias

Parbathbhai Bhimsingbhai Karmur and others vs. State of

Gujarat and another, (2017) 9 SCC 641 , summarizing the

broad principles regarding inherent powers of the High Court

under Section 482 Cr.P.C., has recognized that these powers are

not inhibited by provisions of Section 320 Cr.P.C.

9. The Apex Court in case SectionNarinder Singh and others

vs. State of Punjab and others reported in (2014)6 SCC 466

and also in SectionState of Madhya Pradesh vs. Laxmi Narayan and

others (2019) 5 SCC 688 has summed up and laid down

principles by which the High Court would be guided in giving

adequate treatment to the settlement between the parties and

exercise its power under Section 482 of the Code while accepting

the settlement and quashing the proceedings or refusing to

accept the settlement with direction to continue with criminal

proceedings.

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10. No doubt Section 376 IPC is not compoundable

under Section 320 Cr. P.C. However, as explained by Hon’ble

Supreme Court in Gian Singh’s, Parbatbhai and Narinder Singh’s

.

cases supra, power of High Court under Section 482 Cr.PC is not

inhibited by the provisions of Section 320 Cr.P.C. and FIR as well

as criminal proceedings can be quashed by exercising inherent

powers under Section 482 Cr.PC, if it is warranted in given facts

and circumstances of the case for ends of justice or to prevent

abuse of the process of any Court, even in those cases which are

not compoundable where parties have settled the matter

between themselves.

11. In present case, respondent No.2/complainant also

appeared in person in this Court and her statement, as discussed

in para 3 supra, has also been recorded in this Court, wherein

she has expressed her desire to close the proceedings against

the petitioner.

12. It is true that as a matter of principle, quashing of

FIR on the basis of compromise should not be permitted in case

of heinous crime like Section 376 IPC for the reason that said

crime is against the society having adverse impact on it and also

that possibility of compromise under any kind of pressure, threat

or coercion cannot be ruled out in such cases as victims normally

belong to the weaker class. But in given facts and circumstances

of the present case, where offence of rape is made out because

of the fact that a young girl, apprehending cheating has lodged

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FIR and now again residing in her matrimonial house with

petitioner-accused, it cannot be compared with other cases.

13. Observation of the Coordinate Bench of this Court in

.

similar case decided on 12.01.2017 in Cr.MMO No. 385 of 2016,

titled as Chander Vir Kaundal vs. State of H.P., would also be

relevant, where it is recorded that looking at the case from

another angle, since the petitioner has solemnized marriage with

respondent, obviously, there is no possibility of her supporting

the charge in case the petitioner is put to trial. Therefore, in such

circumstances, the continuation of criminal proceedings would

only cause untoward torture or harassment apart from creating

undue social and psychological pressure upon the private parties

and it will be an extremely sad story in case complainant is

called in the witness box to depose against the accused, who is

none other than her husband.

14. In present case also, deposition of victim in the

Court in consonance with prosecution case would lead to landing

her husband in jail and pushing her in pitch dark whereas

retracting from her earlier version may put her in unnecessary

trouble.

15. Learned counsel for the accused-petitioner has also

referred to judgments passed by the Coordinate Benches in

Cr.MMO No. 301 of 2018, decided on 24.04.2019, titled as SectionAsha

Devi others vs. State of Himachal Pradesh another; Cr.MMO

No. 399 of 2018, decided on 18.09.2018, titled as SectionKajal another

vs. State of Himachal Pradesh another; Cr.MMO No. 244 of

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2019, decided on 07.05.2019 titled as SectionX vs. State of H.P.

others; Criminal Miscellaneous (Main) No. 139 of 2018, decided

on 26.5.2018, titled SectionSahil Chaudhary vs. State of H.P. and

.

another; and Cr.MMO No.41 of 2019, titled as SectionRavi Goyal and

another vs. State of Himachal Pradesh others, decided on

24.09.2019 wherein FIRs registered under Section 376 IPC read

with provisions of POCSO Act have been quashed in similar

circumstances where victims and accused had married to each

other.

16. The ratio of law laid down by the Apex Court on the

issue of permitting the compromise and quashing of FIR in all

cases, the Courts must consider the interest of public at large

and the offence offending the Society at large should not be

permitted to be compromised and quashing of FIR or criminal

proceedings on the basis of such compromise should not be

permitted. Present case is somewhat different from general

category, as in present case, it is not on the basis of compromise

that quashing of FIR has been sought for, but it is a case where

interest of victim is also involved and welfare of victim appears

to be in closing criminal proceedings as she has proclaimed

herself to be wife of accused. Now in the facts and circumstances

of the case, this case cannot be termed as a case subjecting the

victim-complainant forcibly to illicit sexual intercourse. Further,

it is a peculiar kind of case where there is a conflict between

interest of victim and societal interest. Interest of victim is not

purely private in nature as rehabilitation and survival of victim is

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another issue which involves public interest because to ensure

rehabilitation and provide resources for survival of victim is also

responsibility of society. Considering entire facts and circumstances

.

of the case, in my opinion balance lies in favour of the prayer of the

victim.

17. Family is a primary unit of society, which gives

protection to all family members. Therefore, there is always

endeavour to save the family. By saving a family, we definitely save

the fabric of society and thus any endeavour to save the family is

also interest of society. Therefore, in present case, there is conflict

of interest not only between victim and societal interest but also

amongst divergent societal interest i.e. to continue proceedings for

commission of an offence having adverse impact on the society

and to save the family in larger interest of society.

18. SectionIn Madan Mohan Abbot vs. State of Punjab, (2008)

4 SCC 582, the Hon’ble Supreme Court emphasized and advised

that in the matter of compromise in criminal proceedings, keeping

in view of nature of this case, to save the time of the Court for

utilizing to decide more effective and meaningful litigation, a

commonsense approach, based on ground realities and bereft of the

the technicalities of law, should be applied.

19. Therefore, in peculiar facts and circumstances of the

present case, I am of the considered opinion that interest of justice

shall be served in quashing the FIR as well as criminal proceedings

pending against accused-petitioner.

20. Keeping in view the ratio of law laid down by the

Hon’ble Apex Court and considering peculiar facts and

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circumstances of the case in its entirety, present petition is allowed

and matter is permitted to be compounded. Consequently FIR No.

46 of 2019 dated 02.11.2019, registered in Women Police Station,

.

Mandi, District Mandi, H.P., is quashed. Consequent to quashing of

FIR, criminal proceedings initiated against accused-petitioner in

pursuance thereto, are also quashed.

Petition stands disposed of in above terms, so also

pending application(s), if any.

(Vivek Singh Thakur),
Judge.

January 3, 2020
(Purohit)

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